Opinion
NOT TO BE PUBLISHED
APPEAL from the Superior Court of San Bernardino County No. FBA8911. Thomas D. Glasser, Judge.
Janet J. Gray, under appointment by the Court of Appeal, for Defendant and Appellant.
Edmund G. Brown, Jr., Attorney General, Dane R. Gillette, Chief Assistant Attorney General, Gary W. Schons, Senior Assistant Attorney General, Quisteen S. Shum, and Marvin E. Mizell, Deputy Attorneys General, for Plaintiff and Respondent.
McKinster Acting P.J.
A jury found defendant guilty of four counts of assault with a firearm (counts 1, 2, 4 & 6). (Pen. Code, § 245, subd. (a)(2).) As to all four counts, the jury found true the allegations that defendant personally used a firearm during the commission of the assaults. (§ 12022.5, subd. (a).) The jury also found defendant guilty of one count of burglary (count 7). (§ 459.) The court sentenced defendant to state prison for a term of 26 years four months. Defendant makes five contentions: (1) the trial court erred by not instructing the jury on the offense of exhibiting a firearm, because it is a lesser included offense of assault with a firearm; (2) the trial court erred by not instructing the jury on defense of real or personal property; (3) the trial court erred by not instructing the jury on self-defense; (4) the trial court abused its discretion by denying defendant’s motion for self-representation; and (5) defendant was denied his constitutional rights to a jury trial and to proof beyond a reasonable doubt when the court found facts justifying the imposition of the upper prison terms. We affirm the judgment.
All further references to code sections will be to the Penal Code unless otherwise noted.
FACTS
1.
FACTS RELATED TO THE ASSAULT CONVICTIONS
On Thanksgiving day, November 24, 2005, Cheryl was living on a property in Newberry Springs with her husband David, her eight-year-old daughter Chelsea, her sister-in-law Dedra, her sister-in-law’s boyfriend Richard, and other relatives and grandchildren. Defendant is Richard’s son. Around dusk, most of the family gathered to eat Thanksgiving dinner at Richard’s house, which is the main house on the property. Also on the property are a Quonset hut, where defendant was staying, and a motor home, in which Cheryl lived. Several members of the family drank alcohol during dinner, but Cheryl did not. Defendant’s father was not present at Thanksgiving dinner, because he was out of town.
After the family ate dinner, Cheryl, her husband David, her daughter Chelsea, her brother-in-law Scott, her nephew Lewis, and Richard’s granddaughter Casey walked outside to an area of the property where four to seven inoperable cars were located near a line of widely spaced trees, directly opposite of the Quonset hut. Defendant came from the other side of the tree line with a double-barrel shotgun at his side, but defendant did not cross the tree line. No one other than defendant had a firearm. Defendant said, “Get the fuck away from the area.” Cheryl did not know why defendant was telling the relatives to leave, because the family was “always . . . around that property.” Defendant raised the gun and pointed it at David. Defendant told the group, “You’re not supposed to be over here. This is my part of the area.” Cheryl and Casey testified that Scott and David began arguing with defendant, calling him a “punk ass bitch” and saying they would “kick [defendant’s] ass.” Casey testified that David and Scott told defendant they would kill him, but Casey did not “know what they were really talking about.” Defendant responded by saying, “I’m going to shoot you.” David told defendant, “My daughter is here; you know, don’t do nothing stupid.” At some point, defendant lowered his gun.
David testified that he did not begin to curse at defendant until after he was shot.
Casey and Lewis stayed by the cars while the rest of the group began to walk away from defendant. Cheryl and Casey testified that the group walked away in a diagonal direction, so that they were not walking backwards, but also were not completely turned away from defendant. Just as the group began to take a couple steps, and as David was sideways, in the process of turning away from defendant, defendant raised the gun and shot David. Casey testified that prior to being shot David was daring defendant to shoot him, but also telling defendant to “put the gun down, or let’s fight like men.” Cheryl took her daughter’s hand and began running towards the house with her husband. David suffered BB wounds to the right side of his face and his chest. David’s brother also suffered BB wounds in his back. Prior to this incident, there was “a little tension” between David and defendant, but the two tolerated one another.
Sheriff’s Deputy Lozano testified that David’s wounds were consistent with being shot with the type of ammunition used to hunt birds. Bird shot “is a shotgun shell filled with small beebees, almost consistent with the beebee gun” and that “50 or 60 beebees or pellets [fit] in one bird shotgun shell.”
On November 24, 2005, San Bernardino County Sheriff’s Deputy Phillips and several other deputies arrived at the property in Newberry Springs to investigate the shooting. Approximately 15 deputies searched the area for defendant.
The jury found defendant guilty of assaulting David, Cheryl, Scott, and Chelsea, but the jury found defendant not guilty of assaulting Lewis and Casey. (§ 245, subd. (a)(2).)
2.
FACTS RELATED TO THE BURGLARY
On November 27, 2005, William returned to his 65-acre property in Newberry Springs, which is located less than a mile, through open desert, from the property where the shooting occurred. William’s property is surrounded by multiple layers of barbwire and security fences, which have gates that are secured by chains and locks. In the center of William’s property is a two and one-half-acre security compound, which includes a house, garages, and multiple small buildings. The house is William’s residence and he had a truck parked in the driveway. William testified that he left his property on November 22, 2005, and that he locked all the doors of his house and his truck. The doors in William’s residence are secured with double deadbolts that require the use of a key on both sides of the deadbolt.
When William arrived home, a window was open in the front of his house and a window in the back of his house had been broken. A brick and broken glass from the window were located on the floor of the house. Inside the house, William found a television was on, some alcohol was missing from a bottle that had been full, the kitchen cabinets and drawers had been rifled through, his bed was covered in items from various rooms in the house, and jewelry and coins were missing, which were later recovered at the San Bernardino County Sheriff’s station after defendant was arrested. William also noticed that the passenger door of his truck was damaged and the steering column of his truck “had been torn off” and “[t]here was nowhere to put a key.”
3.
FACTS RELATED TO DEFENDANT’S ARREST
On November 26, 2005, the day before William arrived home, San Bernardino County Sheriff’s Sergeant Sapp arrived at William’s property, where he believed defendant was hiding inside William’s house. Other sheriff’s deputies were already at the property and they “set up a perimeter on the inside of the fence around the house” and had a sheriff’s helicopter overhead. After approximately 35 minutes, defendant opened a window, pushed out the screen, and exited the house through the window.
Sergeant Sapp asked defendant where the shotgun was located. Defendant replied, “[I]n the desert by a bush or in the desert.” When asked again, defendant said the shotgun was “by a Quonset hut.” Sheriff’s Deputy Lewis spoke with defendant at the jail. Defendant told the deputy that he had been inside William’s residence overnight, from November 24, 2005 to November 25, 2005. Defendant said that he entered the house through a window. Approximately two months after the shooting, William found the shotgun hidden under a bush on his property.
DISCUSSION
1.
JURY INSTRUCTIONS
A. Facts related to the jury instructions
It appears the majority of the discussion regarding jury instructions was held off the record. On the record, the court gave its reasons for not giving certain instructions: “I just wanted to further say I don’t feel there is any evidence sufficient to support a conviction of any lesser included offenses here, and I do not feel that self-defense instructions should be given. I don’t feel that the defendant is relying on the defense, and also there is not substantial evidence support[ive] of that defense.”
B. Trial court did not err by not instructing the jury on offense of exhibiting a firearm
Defendant contends the trial court erred by deciding not to instruct the jury on the offense of exhibiting a firearm (§ 417, subd. (a)(2)), because it is a lesser included offense of assault with a firearm (§ 245, subd. (a)(2)). We disagree.
“Under California law, a lesser offense is necessarily included in a greater offense if either the statutory elements of the greater offense, or the facts actually alleged in the accusatory pleading, include all the elements of the lesser offense, such that the greater cannot be committed without also committing the lesser. [Citations.]” (People v. Birks (1998) 19 Cal.4th 108, 117-118, fn. omitted.)
Section 417, subdivision (a)(2) defines exhibiting a firearm as: “Every person who, except in self-defense, in the presence of any other person, draws or exhibits any firearm, whether loaded or unloaded, in a rude, angry, or threatening manner, or who in any manner, unlawfully uses a firearm in any fight or quarrel.”
In People v. Escarcega (1974) 43 Cal.App.3d 391 (Escarcega), the court concluded that exhibiting a firearm is not a lesser included offense of assault with a firearm, because an assault “may be perpetrated without drawing or exhibiting [a firearm] in a rude, angry, or threatening manner, or using it in a fight or quarrel.” (Id. at p. 398.) Consequently, we conclude exhibiting a firearm is not a necessarily included offense of assault with a firearm.
The first amended information charged defendant with six counts of assault with a deadly weapon (§ 245, subd. (a)(2)). Each of the six counts applied to a different victim, but used the same wording, which read: “On or about November 24, 2005, in the above named judicial district, the crime of ASSAULT WITH A FIREARM, in violation of PENAL CODE SECTION 245(a)(2), a felony, was committed by [defendant], who did willfully and unlawfully commit an assault on [the victim] with a firearm.” We conclude that the facts alleged in the accusatory pleading did not include all the elements of the crime of exhibiting a firearm, i.e., that the firearm was exhibited in a rude, angry, or threatening manner or that it was used during a fight or quarrel. Accordingly, we conclude the court properly chose not to instruct the jury on the offense of exhibiting a firearm.
Defendant argues that the instruction should have been given because in People v. Wilson (1967) 66 Cal.2d 749, 764 (Wilson), the court “reversed an assault with a deadly weapon conviction because of the failure to instruct on the lesser included offense of brandishing [a weapon], section 417.” In Wilson, the defendant was charged with two counts of murder (§ 187) and assault with a deadly weapon with intent to commit murder (§ 217). (Wilson, at p. 752.) The jury found defendant guilty as charged, except as to one assault charge the defendant was found guilty of assault with a deadly weapon (§ 245, subd. (a)(2)). (Wilson, at p. 752.) The court concluded evidence in the case supported instructing the jury with the law codified in section 417. (Wilson, at pp. 756-759.) The court did not conclude that exhibiting a firearm is a lesser included offense of assault with a deadly weapon. (Ibid.) Furthermore, in Wilson the court “failed to follow its own rule, i.e., that the determination of whether an offense is lesser included is made from the language of the statute or the information, and not from the evidence adduced at trial.” (People v. Steele (2000) 83 Cal.App.4th 212, 221 (Steele).)
Defendant also cites People v. Coffey (1967) 67 Cal.2d 204 (Coffey), to support his position. In a footnote in Coffey, the court wrote, “The jury herein was properly instructed that section 417 sets forth a lesser offense necessarily included in those charged [which included assault with a firearm].” (Id. at p. 222, fn. 21.)
In Steele, supra, 83 Cal.App.4th at pages 220-221, the court found itself in a dilemma over whether to follow our Supreme Court’s decisions in Coffey and Wilson or the appellate court’s holding in Escarcega. In Steele, the court acknowledged its duty under Auto Equity Sales, Inc. v. Superior Court (1962) 57 Cal.2d 450, 455, to follow the holdings of our Supreme Court; however, it opted to follow Escarcega. (Steele, at pp. 220-221.) The Steele court noted “that the logically unsupportable statements in Wilson and Coffey (that brandishing is a lesser included offense to assault with a firearm) are simply aberrations.” (Steele, at p. 220.) The Steele court concluded that it “is inescapable that an assault with a firearm may be committed without the defendant brandishing such weapon.” (Id. at p. 221.) We follow the court in Steele and apply the holding in Escarcega, as discussed ante. (Escarcega, supra, 43 Cal.App.3d at p. 397.)
C. The trial court did not err by not instructing the jury regarding defense of property and self-defense
Defendant contends the trial court erred by (1) not instructing the jury sua sponte on a defendant’s right to defend his real or personal property (Judicial Council of California Criminal Jury Instructions, CALCRIM No. 3476); and (2) declining to instruct the jury on-self defense. We disagree.
“It is settled that, even in the absence of a request, a trial court must instruct on general principles of law that are commonly or closely and openly connected to the facts before the court and that are necessary for the jury’s understanding of the case. [Citations.] The trial court is charged with instructing upon every theory of the case supported by substantial evidence, including defenses that are not inconsistent with the defendant’s theory of the case.” (People v. Montoya (1994) 7 Cal.4th 1027, 1047.)
During closing arguments, defendant’s trial counsel argued that there were “two ways to look at this [incident].” Defense counsel first argued that the shooting may have been willful, but only towards David and Scott. Second, defendant’s trial counsel argued the shooting was most likely accidental. In his final closing remark, defendant’s trial counsel said, “And as I said, on the assault with the firearm, at the end of the day when you’re done deliberating, you will come to the conclusion that [defendant] did not willfully discharge that firearm.”
Defendant’s primary theory of the case was that the shooting was accidental rather than intentional. The theory of an accidental shooting is inconsistent with the theory of self-defense or defense of property, because defending one’s self or one’s property implies an intentional shooting. (People v. McCoy (1984) 150 Cal.App.3d 705, 709.) Accordingly, we conclude instructions on defense of property and self-defense would have been inconsistent with defendant’s primary theory of the case.
As to defendant’s secondary theory of the case—that the shooting was intentional only towards David and Scott—it was undisputed that defendant was the only person who was armed with a firearm during the incident. Both defense of property and self-defense require a proportional response to the victims’ acts, and there was no evidence that defendant’s act of shooting the victims with a shotgun was a proportional response. (CALCRIM Nos. 3470 and 3476.) Casey testified that David and Scott threatened to kill defendant; however, she also testified that they told defendant to “put the gun down, or let’s fight like men.” Accordingly, there was not substantial evidence to support a finding that defendant’s act of shooting the victims with a shotgun while they were turning away was a proportional response to the victims’ threats that they would kill defendant. Moreover, David and Scott’s threats to kill defendant did not present an immediate prospect of execution of the threat, as required for self-defense, because David and Scott were unarmed, while defendant was armed with a shotgun. (People v. Humphrey (1996) 13 Cal.4th 1073, 1093-1094.) We conclude the trial court did not err by not instructing the jury on defense of property and self-defense.
Defendant argues that David was injured on his face and chest, which indicates that he was facing defendant when he was shot, and therefore the theory of self-defense is applicable, because David was not walking away. David testified that he was in the process of turning away when he was shot. David did not testify that he had his back to defendant at the time he was shot. Nevertheless, if David were facing defendant when he was shot, then defendant’s response of shooting David would be unreasonable because David was unarmed.
2.
MOTION FOR SELF-REPRESENTATION
Defendant contends the trial court erred when it twice denied his motions for self-representation. We disagree.
A defendant in a criminal matter “has a constitutional right to proceed without counsel when he voluntarily and intelligently elects to do so.” (Faretta v. California (1975) 422 U.S. 806, 807.) “‘A trial court must grant a defendant’s request for self-representation if three conditions are met. First, the defendant must be mentally competent, and must make his request knowingly and intelligently, having been apprised of the dangers of self-representation. [Citations.] Second, he must make his request unequivocally. [Citations.] Third, he must make his request within a reasonable time before trial. [Citations.]’” (People v. Stanley (2006) 39 Cal.4th 913, 931-932.) “‘In determining on appeal whether the defendant invoked the right to self-representation, we examine the entire record de novo. [Citation.]’ [Citation.]” (Id. at p. 932.) A motion for self-representation that is “‘made out of a temporary whim, or out of annoyance or frustration, is not unequivocal—even if the defendant has said he or she seeks self-representation.’ [Citation.] ‘Equivocation, which sometimes refers only to speech, is broader in the context of the Sixth Amendment, and takes into account conduct as well as other expressions of intent.’ [Citation.]” (Ibid.) “Equivocation of the right of self-representation may occur where the defendant tries to manipulate the proceedings by switching between requests for counsel and for self-representation . . . .” (People v. Lewis and Oliver (2006) 39 Cal.4th 970, 1002.)
A. April 14, 2006
Defendant made his first motion for self-representation on April 14, 2006. Defendant initially made a motion to substitute counsel, which was denied. Defendant had complained that his attorney was not allowing him to see the police report regarding the incident and failing to schedule a psychological evaluation for defendant. The court denied defendant’s motion and suggested that defendant’s attorney schedule an appointment for defendant’s psychological evaluation and allow defendant to look at the police report. After the court denied defendant’s motion to substitute counsel, the following exchange took place:
“[Defendant]: What are my options ongoing [sic] pro per then?
“[The Court]: You have an absolute right to do that.
“[Defendant]: Can I do that?
“[The Court]: Yeah.
“[Defendant]: I would rather do that.
“[The Court]: But now you will have to go through a whole series of hearings with me to make sure of the ability to do this[.]
“[Defendant]: Well
“[The Court]: Why don’t we let you read the police reports, have him get an expert appointed, and then you can always request to represent yourself, if you want, to give them a chance to see what they’re doing[.]
“[Defendant]: Because if he don’t have the time to talk to me or let me know what’s going on in my case, what is the problem with – and I read it in a law book, that it’s legal for his assistant or somebody in his office to let me know what’s going on, but they can’t even do that when they don’t accept collect calls from the jail.
“[The Court]: Not going to accept collect calls. No lawyer is.
“[Defendant]: Writing a letter or anything.
“[The Court]: No lawyer is going to do that. I think [your trial counsel] will see to it that you get more communication.
“[Defendant]: I called Barsley Public (phonetic), and they accept my calls all the time. That’s out, I guess.
“[The Court]: They’re a government outfit, have a little bit more money. [¶] Let’s go ahead and let him read the police report, make your ex parte application for the an [sic] expert, bring it in to me, and I’ll sign it.
“[Defendant’s trial counsel]: Okay.
“[The Court]: Give it a month or two and see what happens. If you don’t like what’s going [on], you can fire him, have a new attorney appointed or represent yourself, if you want. Okay?
“[Defendant]: Okay.”
We conclude the trial court did not deny defendant’s motion for self-representation; rather, defendant agreed to withdraw his motion when he said “okay.” Accordingly, we conclude defendant’s argument has no merit.
To the extent an argument could be made that the court implicitly denied defendant’s motion for self-representation, we conclude defendant’s motion was equivocal because defendant vacillated between requesting substitute counsel and self-representation. Accordingly, the court properly denied defendant’s request.
B. September 18, 2006
On September 18, 2006, the following exchange took place:
“[Defendant’s trial counsel]: He is requesting to represent himself in this trial, to go pro per.
“The Court: As opposed to having someone substitute in, an attorney substitute in for you?
“[Defendant’s trial counsel]: That wasn’t discussed.
“The Court: Okay. What is it that you are requesting, [defendant]?
“The Defendant: I’ve asked him quite a few times. This is like the third Marsden hearing we’ve had.
People v. Marsden (1970) 2 Cal.3d 118 (Marsden).
On June 21, 2006, defendant made a second motion to substitute counsel, which was denied.
“The Court: Third what? Marsden hearing. Okay.
“The Defendant: Before he wasn’t investigating the case.
“The Court: Let me ask you, first of all, what is it you are asking for. Are you asking to represent yourself, which is a serious mistake, or to have another attorney appointed for you?
“The Defendant: Another attorney would be acceptable.
“The Court: You tell me what it is you are asking.
“The Defendant: I mean, I tried to get another attorney before. I’ve been denied when Judge Gibson agreed with me on it and said give him a week and if he wasn’t up to the standards I thought he should be representing me that he would grant the motion. And he started doing the stuff I asked him to, so I just forgot about it for a while, and he started slacking off again. And, like, I’ve told him numerous times where a witness is for my behalf and asked to have her contacted, and he said he’s tried, but he keeps getting phone numbers from her and calling them and the only way he can find her is physically go where she’s at.
“The Court: You are asking to have [trial counsel] relieved and another attorney appointed; is that correct?
“The Defendant: If that’s possible, yes.
“The Court: As opposed to representing yourself, right?
“The Defendant: Yeah. I will [accept] another attorney.
“The Court: Okay. All right.”
The court proceeded with a hearing on defendant’s motion to substitute counsel, which was denied, because the court concluded defendant’s trial counsel was competently representing defendant and the motion was made on the third day of trial.
To the extent defendant made a motion for self-representation, we conclude he withdrew the motion when he told the court that he would accept another attorney. Accordingly, we find defendant’s contention lacks merit, because the court did not deny defendant’s motion for self-representation.
To the extent it could be argued that the court implicitly denied defendant’s motion, we conclude the court did not err by denying the motion because defendant’s motion was equivocal due to his vacillating between moving for self-representation and moving to substitute counsel.
3.
UPPER TERM
A. Facts Related to Defendant’s Sentence
The trial court imposed the upper prison term for assaulting David (count 1). The court cited defendant’s numerous or increasingly serious prior convictions as a reason for imposing the upper term. (Cal. Rules of Court, rule 4.421(b)(2).)
The court also imposed the upper prison terms for the firearm enhancements in counts 1, 4, and 6. The trial court gave multiple reasons for imposing the upper term sentences, one of which was defendant’s numerous or increasingly serious prior convictions. (Cal. Rules of Court, rule 4.421(b)(2).)
B. Defendant’s Contention
Defendant contends the trial court violated his rights to a jury trial and to proof beyond a reasonable doubt when it imposed the upper prison terms for the substantive offense in count 1 and the firearm enhancements in counts 1, 4, and 6. Defendant argues that whether his prior convictions were numerous or of increasing seriousness is a fact that must be determined by a jury, because it is not the prior convictions alone that caused him to suffer the upper term sentences, but the additional fact that his prior convictions are numerous or of increasing seriousness. We disagree.
“Other than the fact of a prior conviction, any fact that increases the penalty for a crime beyond the prescribed statutory maximum must be submitted to a jury, and proved beyond a reasonable doubt,” in accordance with the Sixth Amendment. (Apprendi v. New Jersey (2000) 530 U.S. 466, 490.) In People v. Black (2007) 41 Cal.4th 799 (Black II), the court defined the prior conviction exception as including “not only the fact that a prior conviction occurred, but also other related issues that may be determined by examining the records of the prior convictions.” (Id. at pp. 819-820.) The Black II court held that the aggravating factor of numerous or increasingly serious prior convictions was within the prior conviction exception, explaining that these findings “require consideration of only the number, dates, and offenses of the prior convictions alleged”; the relative seriousness “may be determined simply by reference to the range of punishment provided by statute for each offense”; and these types of determinations were “‘quite different from the resolution of issues submitted to a jury’” and more appropriate for a court. (Id. at p. 820.) In Black II, the court concluded that five prior convictions can be described as numerous. (Id. at p. 818.)
Defendant’s probation report indicates that he has suffered the following prior convictions: (1) being under the influence of a controlled substance (Health & Saf. Code, § 11550) in January 2004; (2) burglary (§ 459) in May 1996; (3) delivering or drafting a check for an account he knew did not have sufficient funds (§ 476a) in May 1996; (4) receiving stolen property (§ 496, subd. (a)) in February 1993; (5) burglary (§ 459) in February 1993; (6) possession of burglary tools (§ 466) in February 1993; (7) manufacturing, importing, selling, or possessing a listed weapon (§ 12020, subd. (a)) in February 1993; (8) resisting or delaying a peace officer (§ 148) in February 1993; and (9) taking or unlawfully driving a vehicle (Veh. Code, § 10851) in February 1993. Defendant also suffered multiple convictions in 1990 and 1989.
We conclude the trial court was correct in finding that defendant has suffered numerous prior convictions, because defendant suffered more than five prior convictions. Accordingly, the trial court did not violate defendant’s rights to a jury trial and to proof beyond a reasonable doubt when it imposed the upper prison terms.
DISPOSITION
The judgment is affirmed.
We concur: Richli J., Gaut J.